Just when it thought it had found calmer waters, the Liberal government is heading into the perfect storm.

Ian Harvey

Contracts with teachers are expiring, the vault is empty, and the deficit and debt are piling up faster than electricity bills in a heat wave.

It’s a tough spot. Contracts expire Sept. 1 and unless new deals conclude by then, the old ones roll over and stick the province with average pay increases of 5.5 per cent. That’s a fiscal imposition the treasury can’t afford. To top it off, there are two byelections set for Sept. 6 that could determine the government’s future.

Taking an uncharacteristically hardline stance against the wind, the Liberals have dictated to teachers after setting the template with the 45,000 members of the Ontario English Catholic Teachers’ Association and then cutting a similar deal with 10,000 French teachers.

Then there are the 75,000 Ontario Secondary School Teachers’ Federation and Elementary Teachers’ Federation of Ontario members who have yet to make a deal and say they’ll negotiate with their boards directly over the next few months.

With the clock ticking, Premier Dalton McGuinty isn’t happy. His option is to act on his threat to call the legislature back and legislate a contract. The province has no authority to lock out the unions as it’s not the employer. The boards can’t do so either because they haven’t spent enough time in good-faith bargaining as required by law.

It’s an extraordinary stance and not just because it’s a 180-degree political shift. As Kevin Banks, director of the Centre for Law in the Contemporary Workplace at Queen’s University, notes, it sets the stage for some far-reaching dynamics both at the workplace level and in defining how far the right to collective bargaining extends.

“It upsets the dynamic of collective bargaining,” he says, noting that unless both parties buy into an agreement, the chances are it will fail.“There’s no law which says they can’t do this. But there will be a Charter argument.”

There’s no clear jurisprudence here, he says, noting that while the Supreme Court of Canada decision in Health Services and Support — Facilities Subsector Bargaining Association v. British Columbia held that the right to collective bargaining was intertwined with the right to free association in the workplace, there are still grey areas.

As such, a challenge under s. 2(d) of the Charter of Rights and Freedoms is almost a guarantee.

Meanwhile, recalling the legislature won’t be easy. For one, the NDP wants no part in this battle given its partnership with the unions. The Conservatives, however, will relish an opportunity to take McGuinty to the mat.In effect, he’s being hoist on his own petard because the root cause of this impasse is the Liberals themselves, says Elizabeth Shilton, a senior fellow at the Queen’s University centre and author of a chapter that deals with the stalemate in a recently published book on labour relations in the educational field.

“This was inevitable,” she says.

“They’ve been bargaining outside the legal framework for years.”

While Bill 160, a law passed in 1997 by the Mike Harris government, restructured collective bargaining with teachers, it was McGuinty and his Liberals who took things to the next level by enshrining a centralized process in which agreements go to the local boards for a final signature.

The issue, says Shilton, is that the legislation allows for local bargaining only and that, as a result, the process has become increasingly unstable over the years.

It scraped through in 2004 but began to unravel in 2008. According to Shilton, it “worked in the first two rounds because the government brought money to the table in 2004 and 2008 as an inducement.”

With a $15-billion deficit, there’s no money this time around but the province must still fix what’s broken, says Shilton. However, she suggests, the remedy is not for the politically faint of heart.

“The technical answer is that the government needs to make a decision whether they want provincial bargaining or a two-tier system and then align that with the legal framework,” she says.

McGuinty and his party have pulled some remarkable rabbits from the hat in the last few years but they’ll have to outdo themselves to survive this time or we’ll be heading into another general election soon.

Ian Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is
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